I have a piece in Salon on the Obama administration’s pending decision regarding what to do about the fact that Colorado and Washington have legalized marijuana.

In my view the importance of the fact that two states — one of them much more mauve than blue — decided to begin to implement something resembling a rational drug policy, has been somewhat lost in all the tumult regarding everything else that happened Tuesday.

This is a key moment in the fight not only against the preposterous war on (some people who use some) drugs, but against a central element of the entire prison-industrial complex — an issue that got essentially no attention during the presidential campaign.

It’s also the opposite of a plea for the president to unleash his Green Lantern powers or to employ the BULLY PULPIT. What he has to do is nothing. That doesn’t seem like too much to ask.

On the other hand, he sure does like to play rope-a-dope (“proceed, Governor”). And getting “conservatives” to criticize him for supporting state’s rights… when the states involved aren’t deep blue… seems like something he might actually be down for.

The article would be a lot stronger without the pointless sniping at Obama in the first couple of paragraphs. Only those hostile to Obama are going to stay with you to the place where you make your point.

Why don’t you ever call me? Why don’t you ever come to see me? Mr. Moretti’s kids come to visit every weekend, but you don’t even care enough to give a me a phone call once week. What I do to make you hate me so much? A good son calls his mother when she’s sick and alone.

Ma, ma, it’s ok, I love you! What did you call to say?

I want you to take me out to lunch so we can have a long talk. Why don’t you ever do that?

I’m at least one data point to the contrary: I’m not really hostile to Obama but I did read the article, and didn’t feel that the intro ruined it. But yeah, it is odd that (apart from the headline) you can’t tell what the piece is about at all until the fourth paragraph.

This beloved old chestnut obscures more than it reveals. I wonder how many poll-unskewers said “The Kossacks work for the czar,” when they didn’t like the October jobs report? Not everything that happens in the executive branch comes down from the Oval Office.

The Attorney General is a much more independent position, given broader discretion, than, say, the Director of Central Intelligence or the Secretary of HUD. The closeness of George W. Bush’s AGs to the White House was a historical anomaly, and a bad one.

nice piece … i don’t see how the prison/law enforcement lobby cannot push back on this at either a state or federal level … it’s where micro-economics turns it’s bulldozers on the macro-civil-society … does PPACA have provisions for medical cannabis? … and thank you for this hungry ghosts meets the rubber on the road …

Marijuana legalization may not seem like a particularly important issue. It is – because a rational approach to marijuana regulation is the first step toward treating drug addiction as a medical problem, rather than a law enforcement issue. This in turn would be an important step toward combating the catastrophic social consequences of a criminal justice system that has put an astounding 2.5 million Americans in prisons and jails on any given day.

I’ll be very curious to see how much the state governments push back against any federal action, if at all. Both initiatives specifically look to generate state revenue, and you figure that if legal marijuana starts actually putting coin in state coffers, they won’t want to lose the money.

My experience as a lawyer with cases under Michigan’s medical marijuana law is that most police, prosecutors and judges hate any form of legalization with a passion, and were constantly looking for loopholes that enabled them to put medical users in jail. I would not expect any state government pushback against federal enforcement–enthusiastic cooperation with federal enfocement is more likely.

I think it depends on the state. Californian state officials seem to be more relaxed about medical marijuana than Michigan’s state officials. Colorado and Washington might go more along California’s way of doing things.

most police, prosecutors and judges hate any form of legalization with a passion, and were constantly looking for loopholes that enabled them to put medical users in jail
…and/or seize their assets to be sold at auction with the proceeds going to buy the department a new helicopter.

I don’t think that Washington and Colorado officials could do anything against federal action. The federal government will only be enforcing existing federal laws and would be acting within their jurisdiction. Since federal law triumphs over state law than federal courts will allow this.

At best the state governments could not cooperate with federal officials like how certain state governments do not cooperate on crackdowns on undocumentated aliens.

Yeah. Decriminalizing personal usage would make a lot of sense, but I doubt there’s many people at all that’d push for crack to be sold over the counter. The thing about marijuana is that it’s so benign – it probably makes more sense to outlaw alcohol than marijuana (in terms of its effects).

Obviously there is no political will to legalize heroine at the moment. But what should we do? The answer is really very simple. You get a doctor’s prescription that you are a heroine addict. You go to a government clinic. You get an injection. You stay for a few hours then you are allowed to leave.

The heroine is cheap. The clinic/staff cost money, but a hell of a lot less than drug enforcement. Without the support of the addict population, the street market for the drug disappears. Problem solved.

the ‘gateway’ is a concern, but it seems to me that’s because it’s within the existing context of drug production/selling/consumpution as a criminal endeavor … a thriving, robust, and fundamentally ‘safe’ recreational controlled substance industry with it’s attendant PR messaging (i can hardly wait) would change the current context … not that many folks fire up their stills to get a good drunk cranked up … that said, i’m unsure if this would create more or less addiction problems … and certainly there are very real safety issues … the u.s. is an unhealthy culture, that’s probably part of the ‘why’ in why there is illegal drug use in the first place … that and some folks find pleasure therein …

Here’s my question: Does legalization stop with marijuana or are people going to push for legalization of cocaine, heroine, meth, etc?

I’m sure some people will. Some people are pushing for that right now. There are a lot of people in the United States, and they all seem to do different things.

But will it work? I doubt it. Smoking weed is something that many, many ordinary*, mainstream**, responsible*** people do. Everyone knows someone, probably many someones, who uses marijuana and is just fine. That’s just not true of other drugs.

And in practice, there is some sense to that. Criminalizing something that only a tiny segment of society does, and mainly people on the fringes, can be done without alienating whole communities from the rule of law, while criminalizing something as common and widespread as alcohol or marijuana creates a broad culture of law-avoidance.

The claim that “what he has to do is nothing” is only true in the most facile sense.

By the same definition of “nothing,” all Congress has to do is nothing in order to abolish all four branches of the armed forces. Just don’t pass a defense authorization act, and no more military. Easy! Doing nothing!

In order to slam your car into a bridge abutment at a curve, as you have to do is “nothing.” Just don’t turn the wheel! Just sit there! Go ahead, give it a shot. See if you can do it.

Except, of course, in any real sense, that wouldn’t mean “doing nothing.” It would represent a huge, controversial political initiative, requiring quite a bit more effort, political capital, and political determination than “doing something” in order to have a military.

Framing the cessation of large-scale, well-established state functions as “doing nothing” is not a forthright attempt to engage with the political and administrative implications of this policy choice. The prison-industrial complex actually exists. The prohibition lobby actually exists. The opposition to federal-level legalization via executive fiat actually exists. To take them on would be a very big thing, not “nothing.”

If you want President Obama to take on this big political fight and make a major policy change without clear legal authority, say that. Don’t pretend that doing so is “nothing” or that allowing the self-sustaining executive branch agencies to continue to operate as they have been is the affirmative decision.

This. At very least Obama is going to need to find a way to get Federal DAs, courts, and DEA officials in Colorado and Washington to respect state action. Even if Obama does nothing, federal officials can stil decide to act on their own to enforce all ready existing federal law.

Even if Obama does nothing, federal officials can stil decide to act on their own to enforce all ready existing federal law.

I’d go so far as to say that federal officials cannot decide on their own not to enforce the law. In the absence of some affirmative act from the White House or AG, those officials would be bound to enforce the law as they always have.

How many federal marijuana prosecutions are there really? I guess it’s a question of whether they go after state accredited dispenseries for openly flouting federal law?

Most low level quantities of marijuana (and “low” could be up to a pound really) are state matters anyway (at least where I live) and would only be prosecuted in federal court if you happen to be possessing/buying/selling on government land. But I guess it’s the dispenseries that pose a problem. I wouldn’t expect them to go after individual people with a few pot plants growing in their home.

They could treat this like the death penalty. There was a period at least where the feds were pledging not to seek the death penalty in federal courts located in states that had abolished the death penalty.

“I guess it’s a question of whether they go after state accredited dispenseries for openly flouting federal law?” That’s exactly what they are doing in California.

“How many federal marijuana prosecutions are there really?” I’m curious about this too. The only statistics I’ve found so far are from 8 years ago, and they said about 25% of people in prison on marijuana charges were in federal prison. I realize that’s not quite the same question.

In Claifornia it isn’t the actual prosecutions that are the problem; it’s law-enforcement harrassment of the landlords of the pot dispensaries. In cop fashion, what they cannot stop through convictions they will stop through informal means.

He can handle it in the same way Republicans handle enforcing the Voting Rights Act. Appoint people to the relevant positions who have no intention of enforcing federal drug policy in those states all while publicly claiming to do no such thing.

But he doesn’t appoint at that level. He just appoints the attorney general. As important as this issue is, it’s very far from being the only important constraint on who would make a good attorney general, and maybe the perfect person doesn’t exist.

This is true, but witless chum didn’t propose that the feds focus their resources better. He proposed the Obama administration appoint people whose specific intent is to undermine and not enforce federal law and then lie about it.

While I fully support legalization and ending the war on drugs, and am glad various states are signalling to the feds “hey, the people who live here would like you to stop, please” the fact of the matter is we DO have federal drug laws, and while the President has a large amount of authority to re-allocate resources and a certain amount of discretion in who does or does not get prosecuted, he is still bound by his oath to, you know, enforce those laws.

Getting around that is going to require federal legislative action. And, you know, I’m okay with that, because the flip side of that coin is that it also requires federal legislative action for the states to do end-runs around the Voting Rights Act or to force people to carry around their papers all the time.

I’d say that prosecutorial discretion gives Obama and Holder a bit more latitude than you are describing here, but your right that such a major initiative as this would be stretching that discretion rather dramatically.

Once again, despite a very good explanation in the Salon article, nobody seems to understand prosecutorial discretion. We had this same argument a few months ago.

The president doesn’t have “a certain” amount of discretion in establishing a charging policy; s/he has near absolute discretion. That’s the essence of executive authority when it comes to law enforcement.

For example, look at page three of this pdf. This prosecutor has established a policy by which certain sorts of NSF checks (e.g. rent checks, out-of-state checks, loan payments) won’t be prosecuted under state law. There’s no law covering most of these exceptions – the prosecutor has made a purely resource-based decision to not chase down every bad check written in his county. No one who knows anything about criminal justice would consider him to be in violation of any “oath.” If his landlord constituents don’t like the policy, they can lobby to change it, or vote in a new prosecutor. But they can’t legally compel him to bring charges.

There’s no law covering most of these exceptions – the prosecutor has made a purely resource-based decision to not chase down every bad check written in his county.

Nor has he decided to cease the prosecution of bad checks, which would the accurate analogy here.

We’re not talking about a decision about which marijuana cases to prosecute, but to cease prosecuting that entire category of cases. That’s not discretion, but a uniform standard. It’s not deciding which cases to prosecute based on the differing circumstances of individual cases, but a decision about prosecuting regardless of circumstances. It’s not a prioritization of resources, but a withdrawal of them entirely from, once again, the entire category of legal violations.

That’s not really fair – it depends on the level of detail you’re talking about. You could just as easily see marijuana cases as a subset of drug cases and make a decision to prioritize the prosecution of other drugs (even using as one reason for that prioritization the local citizenry’s lack of concern with marijuana use/sale as a problem). We choose to prioritize meth/PCP/prescription drug investigations and prosecutions and not go out looking for marijuana cases.

The problem, Emily, is that the law doesn’t merely ban this category “drugs” into which marijuana fits. The law has its own entry for marijuana. It’s not just a subset of “drugs.”

“Not go looking” is one thing, but if we’re talking about dispensaries, for instance, that’s not “looking.” I think it is one of the more clever moves from the marijuana legalization movement that they have set up the camel’s nose so that it cannot settle things at a rough equilibrium, but serves to keep the fight going and the issue in the news.

It’s not a prioritization of resources, but a withdrawal of them entirely from, once again, the entire category of legal violations.

And, to pile on, if this IS possible it shouldn’t be.

The Executive branch exists to enforce the will of the legislative. To EXECUTE it. That’s where the name comes from! It is generally expected that if legislators pass a law, the executive will faithfully uphold and enforce it until such time as that law is repealed or found to be unconstitutional.

It is generally accepted that the executive has wide degrees of discretion in terms of getting things done or dragging their heels when it comes to things they don’t want to do. It’s not accepted that they can tell Congress to go fuck themselves.

Sorry to disappoint, but I have to reiterate: you and Joe don’t have any idea what you’re talking about. You still misunderstand the while concept of executive authority.

There are literally thousands of laws, on the state and federal level, that are never, ever investigated or prosecuted. As Paul pointed out in his article, no prosecutor can charge every violation of every law. For example, Adultery (a 15-year felony in Michigan) is still on the books in many states.

Legislatures are always creating new criminal statutes – hundreds of new ones every year. They do this without any consideration for the resources available to the agencies that will have enforce the new laws. But all these laws are only enforced to the extent that there is a compelling reason to do so – that’s the way it works.

And what’s more, if someone openly ran a bad check operation specializing in rent checks and loan checks, advertising it at such, renting out a storefront with a sign, etc., you bet that prosecutor would charge him, regardless of that policy.

Safe in the hand of one disposing Pow’r,
Or in the natal, or the mortal hour.
All Nature is but Art, unknown to thee;
All chance, direction, which thou canst not see
All discord, harmony not understood,
All partial evil, universal good:
And, spite of pride, in erring reason’s spite,
One truth is clear: Obama’s always right.

Are you talking about Michele Leonhart? She was eventually confirmed as Obama’s appointment as head of the DEA. Her confirmation in late 2010 seems to have corresponded to a harder line against medicinal marijuana.

[she joined the DEA back in 1980 & both as a woman and as a matter of experience and bipartisanship is a logical Obama choice if unfortunate in this context]

On November 30, 2011, Washington State Governor Christine Gregoire announced the filing of a petition [51] [52] with the U.S. Drug Enforcement Administration asking the agency to reclassify marijuana as a Schedule 2 drug, which will allow its use for treatment – prescribed by doctors and filled by pharmacists. Gov. Lincoln Chafee (I-Rhode Island) also signed the petition.

I kept looking on the Campos article and the comments for some mention of this path, which is not obscure.

There are some big difficulties, although not really in process, which has been used as a delaying tactic for decades, since the Nixon Commission advocated rescheduling. Congress can barely get in the way, I do not think there are 2/3 to override a veto.

The bigger difficulties are international, in treaties and conventions.

technically, DEA officials have no business operating in foreign countries to begin with:

And so DEA agents working with Mexican officials to enforce laws and work harder on methamphetamine precursors will look to DC and say:”You are not helping.”

and again, so what? they can look and whine all they want, they don’t make the rules or establish the priorities, congress and the DOJ does. if those DEA agents don’t like it, they can do the honorable (honorable and DEA, in the same sentence, is an oxymoron) thing, and resign. i’m betting few will.

mr. lemieux failed to mention, when discussing nixon’s actions as president (though, maybe in the context of his post, it wasn’t relevant), that he both:

1. initiated the “war on drugs”. and,

2. created the DEA, an agency whose sole function is to serve as the country’s foot soldiers in said “war on drugs”.

thus was the enforcement/prosecution/judicial/penal industry expanded. today it includes “prisons-for-hire”, and those beds aren’t going to fill themselves. it involves billions of dollars, and (as important) 10’s of 1,000’s of jobs, many of them (police & prison guards) unionized. oddly enough, the efforts, by some states, to legalize medical pot, and now recreational pot use, succeeded in (at least briefly), uniting two disparate (and ordinarily at each other’s throats) groups: unions & corporations, against both efforts.

given the enormous financial self-interest the aforementioned groups (plus the drug cartels themselves) have in maintaining the status quo, with regards to pot (and all other drugs), there will be equally enormous pressure exerted on pres. obama’s DOJ (and thus, on pres. obama himself) to squash any sane effort made, by any state, to legalize pot, period. CO & WA will see themselves made examples of, to not dare fuck with the money flow, generated by keeping pot illegal.

pot being illegal has never been about public health, it’s always been about racism, and now cash flow, a dangerous combination. one i’m sure AG holder is well familiar with (at least i hope he is), but has never seemed to bother him. while pres. obama doesn’t have to concern himself about re-election, there are lots of other politicians that do, and they aren’t going to want to be seen as endorsing legal drug use.

there’s also the small matter of all those people who’ve been incarcerated for the very behavior that CO & WA have just said should be perfectly legal; how to explain “never mind”, to all those directly and indirectly impacted by its having been illegal all these years, without looking like a complete tool? yeah, i know, if looking like a tool was an actual impediment to political success, we’d have few aspirants for the jobs, but still…………………….

Anti-narcotic laws have been around for a long time, but the Controlled Substances Act was still a rather big event in American drug policy as such things go. Plus, in a more pedantic sense, it appears that the phrase “War on Drugs” was popularized by Nixon.

Just as a matter of common sense, and setting side my personal oppositon to the drug war, I think a reasonable and likely position for the administration would be that they aren’t going to bust people for possession for use or small local sales. I suspect that if you’re a farmer in Colorado with 10,000 acres of marijuana under cultivation, the feds will find it hard to resist busting you. They are not going to want to allow local legalization to mean that Colorado and Washington become marijuana dealers to the whole nation.

I suspect that if you’re a farmer in Colorado with 10,000 acres of marijuana under cultivation, the feds will find it hard to resist busting you.

this is likely to remain the situation, until ADM, Dupont, and the whole parade of agribusiness/pharma/biotech behemoths move into the arena … there is a whole sector of horizontal industries that will capture this market eventually … and a fine profit center it will be …

i would also add big-tobacco to the parade … it would seem they should have a competitive advantage in distribution, sales & marketing, lobbying, though one would wonder if their crop production would be a viable yield? … they can buy alot of resources … and, it may rehabilitate their public image a little

Can marijuana be turned into a mass market good the way tobacco could? Are factories producing thousands of marijuana joints possible? Semi-decriminilization in the Netherlands hasn’t seemed to result in the Dutch business community industrializing the production of marijuana based products.

no doubt these are very good questions. i don’t have answers, i’m speculating …

Can marijuana be turned into a mass market good the way tobacco could?

i think it already is a semi-black market commodity without the legit baggage that goes with that … mercantile exchanges (market makers), big brand names (legal market corps, not illegal cartels), end-to-end supply chains, etc… as i mentioned somewhere in this thread, once the thing is decriminalized, it becomes a different context … it is likely to become a greenfield for various business interests … where there’s bucks to be made, there is likely to be a co-opting of the territory … my understanding about holland is that they are stepping back a little from their retail channels … just something i heard recently, can’t remember the source …

I imagine this would take a while. Look at the beer market. 2 decades ago there was budweiser and 12 budwiser knock offs. You had to really hunt for craft beer. Of course this was likely due to the ending of prohibition when all but the biggest of players had been driven out of business so the big boys had the field to themselves. But now quality beats quantity and sales of the major beers have dropped significantly.

Contra that, pot cultivation has been, by necessity, a small scale labor-intensive operation. There aren’t a bunch of big players waiting to get the trucks rolling. They have no expierence in cultivation and no market research on what the market wants.

There will be a spot for the big players but it’s going to take them a while and what they come up with will likely be an inferior mass-produced over-processed product.

The opening paragraphs of that piece is of the tone that Scott and Eric repeatedly ridiculed. I continue to find such a stance best defined as “tool.” Anyways …

“Enforcing federal marijuana law against the states is purely a matter of prosecutorial discretion.”

The “take care” clause of the Constitution has SOME content. It is perfectly fine to say that they shouldn’t target small personal possession though if they are investigating a serious crime and the pot will get them an “in,” they very well might do it. But, take CO:

Even here, there are horror stories, but putting aside Grandma having her home taken away since sonny has a few pot plants cultivated, it is quite another thing for the administration to not target large scale for profit “retail stores” and so forth. Particularly for purely recreational use.

& what JFL etc. said about how “doing nothing” is actually “something” in reality.

In my dreams, Obama says that he’ll be happy to take up the extra judicial burdens associated with WA and CO state legalization the moment Congress allows him to fill all the federal judicial vacancies.